Opinion 18-157

October 18, 2018

Digest:         Where an appellate judge with administrative or supervisory responsibilities concludes that a lower-court judge improperly contacted the judges participating in an appeal in an attempt to influence the disposition of the case, he/she

(1) must ensure the incident is reported to the Commission on Judicial Conduct;

(2) must direct that the improper communication be disclosed to appellate counsel in the case; and

(3) may permit the appellate judges who received the improper communication to continue to preside in the case if he/she is satisfied they (a) can be fair and impartial and (b) can decide the appeal without reference to the improper communication.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(D)(1); 100.3(E)(1); Opinions 17-135; 17-53; 17-48; 16-155; 15-138/15-144/15-166; 15-94; 13-146; 12-78; 10-175; 98-77.

Opinion:

         An appellate judge with administrative and/or supervisory responsibilities has become aware of apparent misconduct by a lower-court judge. Very shortly after hearing oral argument, each judge participating in the appeal received an email from the lower-court judge whose order was being appealed. The email identified the case in the subject line, acknowledged that it was on “today’s calendar,” and proceeded to “share my side of the story” in detail. The lower-court judge made several factual assertions, characterized one attorney as “sleazy,” and attached a document from the county clerk’s file. No attorneys or parties were copied on the email. The inquirer says the lower-court judge has previously engaged in similar, though less extreme, conduct. Specifically, he/she once contacted certain appellate judges with an “intemperate email” after they reversed him/her on appeal.¹ The inquirer asks if this new incident must be reported to the Commission on Judicial Conduct, if the appellate judges who received the email must be disqualified from the matter, and if the email must be disclosed to the parties’ counsel.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “initiate, permit, or consider ex parte communications” unless an exception applies (22 NYCRR 100.3[B][6]). Further, a judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). A judge who receives information indicating a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules Governing Judicial Conduct must take “appropriate action” (22 NYCRR 100.3[D][1]).

Disciplinary Obligations

         We start with an overview of the applicable standards. As we advised in Opinion 13-146 (citations omitted):

A judge is not required to conduct an investigation of the alleged misconduct and, therefore, may discharge his/her disciplinary responsibilities based on facts already known to the judge without further inquiry. In general, the Committee has advised that the judge, who has first-hand knowledge of all the facts and persons involved in a particular situation, is in the best position to determine whether there is a “substantial likelihood” that another judge has committed a “substantial violation” of the Rules. If a judge concludes that either of these two elements is missing, he/she need not take any action. If a judge concludes that there is a substantial likelihood that another judge has engaged in a “substantial violation” of the Rules, the action the judge must take will depend on the nature of the misconduct. For example, if the misconduct is so serious that it calls into question a judge’s fitness to continue in office, the judge must report the conduct to the appropriate disciplinary authority. By contrast, if the misconduct, although substantial, does not reach that level of seriousness, the judge has the discretion to take some other, less severe action than reporting the conduct to a disciplinary authority.

         These determinations are ordinarily left to the inquiring judge’s discretion (id.). Indeed, the Committee “cannot judge the credibility of allegations of misconduct and is not empowered to do so” (Opinion 15-94 [citations and internal quotation marks omitted]). However, as stated in Opinion 17-48 (citations omitted):

There have nonetheless been instances where the facts described in an inquiry make clear the inquiring judge has sufficient information to meet the initial “substantial likelihood” threshold and the conduct described, if true, clearly calls into question another judge’s fitness to continue in office. In such instances, the Committee has generally advised that “appropriate action” necessarily involves reporting the conduct to the Commission on Judicial Conduct for inquiry and investigation.

         Turning now to the conduct described here, we note the “substantial likelihood” prong is clearly met, as this appellate judge personally reviewed the email at issue.

         As for the “substantial violation” prong, the email as described in the inquiry creates an impression the lower-court judge tried to influence the outcome of an appeal of his/her decision. This is clearly prohibited (see Opinion 98-77). The email appears to be both an impermissible substantive ex parte communication (see id.; 22 NYCRR 100.3[B][6]) and an improper attempt to influence the appellate judges by introducing material and arguments outside the record. Moreover, the appearance of impropriety is arguably exacerbated by the lower-court judge’s prior email to an appellate panel, reinforcing the impression the lower-court judge considers him/herself an “advocate” for his/her own decisions and orders, rather than an impartial arbiter of cases where he/she has no personal interest (see Opinion 98-77).

         This conduct, if proved, goes to the heart of the lower-court judge’s fitness to continue in office. It is likely to undermine public confidence in the judiciary, as it suggests one judge’s attempt to improperly influence other judges, and raises very serious questions about the lower-court judge’s impartiality, fairness, and understanding of the proper role of a judge (see e.g. Opinions 17-135; 98-77).

         Accordingly, this new incident must be reported to the Commission on Judicial Conduct (see Opinions 17-135; 10-175).

Disclosure

         We believe the lower-court judge’s email must be shared with the appellate attorneys, as this is the usual remedy for an improper ex parte communication and will allow the attorneys to decide if they need to take any steps to protect their clients’ interests (see generally Opinion 17-53 [discussing prior opinions]; 16-155 [“an impermissible ex parte communication, if it occurs, may generally be dispelled by disclosing it to all sides”]).

Disqualification

         We have recognized that a judge, due to specialized “‘learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination’ based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Opinion 12-78 [citations omitted]). Thus, and especially once the improper ex parte communication has been disclosed to the parties’ attorneys, we believe the appellate judges’ impartiality cannot “reasonably be questioned,” as a matter of judicial ethics, based on the lower-court judge’s misconduct (22 NYCRR 100.3[E][1]). We therefore conclude that the appellate judges who received the improper email may continue to preside in the matter as long as they (1) believe they can be fair and impartial and (2) can decide the appeal without reference to the email (cf. Opinion 15-138/15-144/15-166 [requiring disqualification “if the judge believes he/she cannot decide the appeal without considering ex parte rumors the parties or counsel did not raise or discuss”]).

         Accordingly, assuming the inquiring judge is satisfied those two criteria are met, it is entirely within his/her discretion, in his/her administrative or supervisory capacity, whether to permit the appeal to be decided by some or all of the judges who have already heard oral argument, to assign one or more new judges to hear the matter, or to transfer the matter elsewhere for decision.

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¹ In the earlier incident, after the lower-court judge read a published appellate order reversing one of his/her decisions, he/she emailed the judges who decided the appeal and “expressed puzzlement at the reversal and questioned the holding.” A week later, the lower-court judge emailed the appellate judges again and “apologized for the intemperate email, apologized for having sent it, and acknowledged the correctness of the appellate decision.”